SUPREME COURT

• CRIMINAL LAWS

Dr. Sunil Kumar Sambhudayal Gupta and Ors. Vs. State of Maharashtra (Decided on 11.11.2010) MANU/SC/0947/2010

Reversal of the order of acquittal - Appeal against thereof - Charges were framed under Sections 306/34 and 498A/34 of the Indian Penal Code, 1860 - Order of acquittal was passed by the Trial Court on the ground that inconsistent, embellished and improved statements were made by the witnesses

Held, omissions that amount to contradictions in material particulars render the testimony of the witness liable to be discredited. It is a well-established principle of law that while dealing with a judgment of acquittal, an Appellate Court must consider the entire evidence on record so as to arrive at a finding. Even though the Appellate court was entitled to consider a finding of fact, the Trial Court placed the burden of proof incorrectly or failed to take into consideration any admissible evidence and/or had taken into consideration evidence brought on record contrary to law. The Appellate Court should not ordinarily set aside a judgment of acquittal in a case where two views are possible. The Appellate Court should bear in mind the presumption of innocence of the Accused.

The present is a clear-cut case of gross abuse of the dowry laws where it was difficult to sustain the conviction of the Appellants due to the inconsistent, embellished and improved statements of the witnesses, which materially contradict their respective statements recorded earlier. The High Court did not dislodge the reasons given by the Trial Court for acquittal and it also did not make any attempt to appreciate the evidence with accuracy and reversed the findings of the Trial Court based on the evidence on record and for which detailed reasons had been assigned. Appeal accordingly allowed and judgment and order of the Trial Court restored.

Monica Bedi Vs. State of A.P. (Decided on 09.11.2010) MANU/SC/0934/2010

Conviction - Conspiracy - Possession of fake passport- Section 120B, 419 and 420 Indian Penal Code, 1860 and provisions under Section 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988

Held, Monica Bedi (the Appellant herein) was involved in the conspiracy as proved at both stages i.e., pre and post-passport application stage. The conspiracy itself was hatched only with a view to secure a passport for Monica Bedi in the assumed name of Sana Malik Kamal. The sequence of events as unfolded by the evidence do not recapitulate as noticed by the court. The Charges leveled against the Appellant stood clearly proved. Conviction of the Appellant for the offence punishable under Sections 120B, 419 and 420 IPC upheld. It was for Appellants benefit that the entire conspiracy was hatched involving more than one individual in order to secure a passport for her benefit enabling her to travel abroad in the assumed name of Sana Malik Kamal. There was no material based on which this Court would differ with the findings and conclusions concurrently arrived at by the Courts below.

Om Pal Singh Vs. State of U.P. (Decided on 09.11.2010) MANU/SC/0936/2010

Criminal - Conviction based on testimony of eye witnesses corroborated by medical evidence and dying declaration -Whether High Court and Trial court correct in accepting dying declaration as an acceptable piece of evidence?

Held, that Trial Court as well as the High Court rightly accepted that the dying declaration is an acceptable piece of evidence. Merely because it was not in question and answer form would not render the dying declaration unreliable. The absence of a certificate of fitness by the Doctor would not be sufficient to discard the dying declaration. The statement made by the injured was candid, coherent and consistent thus, there is no reason to disbelieve the same and therefore no reason to differ with the conclusions arrived at by the Trial Court and the High Court with regard to the dying declaration. The entire incident of shooting was graphically described by the two witnesses. And the direct testimony of these two witnesses had been corroborated by the medical evidence and the dying declaration. Therefore Judgments recorded by the Courts below do not call for any interference.

Pepsico India Holdings Pvt. Ltd. Vs. Food Inspector and Anr. (Decided on 18.11.2010 ) MANU/SC/0953/2010

Presence of Pesticide residue in a carbonated beverage adulterated which is injurious to health - Whether there is any criminal liability of Directors of the Company on account of alleged violation of the provisions of the 1954 Act?

Held, that the High Court went beyond the ratio of the decision of this Court in S.M.S. Pharmaceuticals Limited case upon holding that the principles set out in the said decision could not be understood in any mechanical or rigid manner. Instead, the High Court based its judgment on the decision of this Court in N. Rangachari v.Bharat Sanchar Nigam Ltd. which was a case where the complaint clearly and categorically alleged that the named Directors were in charge of and responsible to the Company for the conduct of its business. Therefore the present court allowed the appeals and set aside the judgment and order of the learned Single Judge impugned in these proceedings and quash the prosecution of the Appellants in respect of the various complaints challenged before the High Court in its inherent jurisdiction.

• SERVICE LAWS

Pushpa Vanti Vs. Union of India (UOI) and Ors. (Decided on 15.11.2010) MANU/SC/0948/2010

Fixation of correct pension and arrears - Claim by widow of Army Major, getting pension of Rs. 80/- per month as pension

Held, Central Government directed to set up a Commission called as the Armed Forces Grievances Redressal Commission within two months which would look into grievances by serving former members of the armed forces (i.e. Army, Navy and Air Force) or their widows or family members and would make suitable recommendations expeditiously to the Central Government in this connection. The Commission will also frame and recommend to the Central Government a scheme for proper rehabilitation of discharged soldiers.

• PROPERTY LAWS

Ishwar Nagar Co-op. Housing Building Society Vs. Parma Nand Sharma and Ors. (Decided on 15.11.2010) MANU/SC/0950/2010

Expulsion of Member from acquired membership of the society for allegedly violating Rule 25 of the Bombay Co-operative Societies Act, 1925 and terms of the perpetual lease agreement - Applicability of rule - Whether retrospective i.e. prior to Rules becoming effective?

Held, that applicability of Rule 25(2) is not retrospective. Its operation is prospective in nature, though the basis for taking such action is the factum of acquiring a plot in the past. The arguments raised by Respondent No. 1 in the instant case held to without merit and the appeal was allowed.

• ARBITRATION LAWS

Alva Aluminium Ltd. Bangkok Vs. Gabriel India Limited (Decided on 16.11.2010) MANU/SC/0951/2010

Appointment of Sole Arbitrator - Validity of Arbitration agreement challenged - Jurisdiction of Court to determine the existence of an Arbitration agreement between the parties in a petition under Sections 11(5) and 11(9) of the Arbitration and Conciliation Act, 1996 under challenge

Held, if the existence of the Arbitration agreement itself is questioned by any party to the proceeding initiated under Section 11 of the Arbitration Act, the same would have to be decided by the Chief Justice/designate as the case may be. The existence of an Arbitration agreement was a jurisdictional fact and would have to be addressed while making an order on a petition under Section 11 of the Act. The Chief Justice or his designate could pass an order of reference of the disputes for adjudication.

Whether any agreement was executed between the parties to call for the appointment of an Arbitrator for adjudication of the disputes and differences between them?

Held, a legally valid contract indeed came into existence between the parties containing an arbitration clause for adjudication of disputes that may arise between them. The petition was allowed and Mr. Justice Anil Dev Singh, former Chief Justice of Rajasthan High Court was appointed as sole Arbitrator for adjudication of the disputes between the parties arising out of the contract referred to in the petition.

• TRUST AND SOCIETIES

Ramjas Foundation and Anr. Vs. Union of India and Ors. (Decided on 09.11.2010) MANU/SC/0930/2010

Exclusion of 'Wakf Property' from acquisition - Whether land liable to be excluded from acquisition because of it being a Wakf property

Held, Appellants had not approached Court with clean hands. In previous petition present Court noted that Appellants had made patently incorrect statement on issue of denial of opportunity of personal hearing. It was dismissed mainly on ground of delay and contumacious conduct of Appellants. In list of dates of special leave petition out of which present appeal arose, there was not even a whisper about large number of cases filed by Appellant No. 1 challenging acquisition. In function organized on 25th December, 1916 in Ramjas School, the dedicator was said to have made announcement that he had created Wakf but no evidence was produced before Single Judge to prove same. Even after so called dedication of land for charitable purposes, same continued in name of Rai Sahib Kedar Nath till 1936 when he executed release deed in favour of Trust of which he himself was founder, trustee apart from being Manager of school and President of Society - Hawan ceremony performed by him which was preceded by Samarpan and Sankalp had also shown that he did not intend to create Wakf - In deed of settlement executed by British Government, institution was described as public educational charity and not as Wakf. Therefore, concurrent finding recorded by Courts below that what was created by Rai Sahib Kedar Nath was public charitable trust and not Wakf and property acquired vide notification dated, 13th November, 1959.

• Constitutional Laws

Anokh Singh Vs. Punjab State Election Commission (Decided on 29.10.2010) MANU/SC/0918/2010

Disqualification in election procedure for holding Office of Profit - Relief sought for quashing of the impugned memorandum by which Lambardars and Anganwari workers had been debarred from contesting elections - Whether an incumbent Lambardar would hold an 'office of profit' under Government

Held, that High Court erred in not analyzing the real and substantive nature of the honorarium and failed to take notice of the fact that the Respondents had placed no material on the record to establish that the honorarium of Rs. 900/- would result in a net gain to the Lambardar. There was no evidence from which an inference could be drawn that the allowance paid would be in excess of the expenditure incurred in performance of the duties by the Chairman.

High Court also erred in recording a conclusion without insisting on the evidence on the basis of which such conclusion could have been recorded.State Election Commission has also failed to take note of the factual situation. There is no material on the record to show that the receipt of Rs. 900/- per month by the Lambardar would invariably lead to a saving. Even though the office of Lambardar is regarded as a mere relic in this day and age, it still carries with it certain important duties which are to be performed by the incumbent. Although purely 'honourary' being a Lambardar gives the incumbent a certain status in the village.

HIGH COURTS

• Civil Laws

PUNJAB AND HARYANA HIGH COURT

Smt. Kamlesh Vs. Naresh and Anr. Decided on 29.10.2010 MANU/PH/2201/2010

Issue of Territorial Jurisdiction - Reopening thereof before the Execution Court - Whether this can be permitted

Held, once during the pendency of the suit, territorial jurisdiction of the Trial Court was challenged and was over-ruled by the Trial Court and suit was decreed, then, it is not open to raise the same before the Executing Court. Petition was held to be devoid of merit and an abuse of process of law.

Rakesh Vs. Om Pal and Ors. decided on 29.10.2010 MANU/PH/2203/2010

Application under Order 7 Rule 14(3) of the Code of Civil Procedure, 1908 seeking leave of the Court to summon official for bringing on record documents - Manner in which such application should be disposed

Held, laid down as the golden rule, none of the party should be given walk over and lis between the parties, as far as possible, should be decided at its own merit after granting sufficient opportunities to both the parties to place on record entire evidence and material. Accordingly, it was directed in the instant matter that on the date fixed cross-examination of two PWs shall be held and Plaintiff shall be entitled to produce other witnesses also and also be at liberty to move an application under Order 7 Rule 14(3) of the Code of Civil Procedure to place on record certified copies of the revenue record. However, it was clarified that if such an application is moved under Order 7 Rule 14(3) of the Code of Civil Procedure, the same shall be decided by the Trial Court in accordance with law

• SERVICE LAWS

UTTARANCHAL HIGH COURT

Mrs. Jyotsana Vs. State of Uttrarakhand and Ors. (Decided on 29.10.2010) MANU/UC/1065/2010

Entitlement to Caste certificate - Issuance thereof - Issue of Domicile - Criteria and eligibility

Held, in the instant case, father of the Petitioner was finally allocated to State of Uttarakhand and hence therefore it cannot be said that he migrated to State of Uttarakhand - In fact, by virtue of final allocation, he acquired domicile of State of Uttarakhand and his daughter in that capacity automatically acquired domicile of State of Uttarakhand, thus entitled for caste certificate - As per the relevant Government Order a Caste Certificate would be issued to those persons 'who are residing' or taken birth in the area, thus for the purpose of issuing Caste Certificate, existing either of two ingredients would be sufficient for issuance of such certificate. The Petitioner had become a permanent resident and a permanent domicile of Uttarakhand by virtue of her marriage to a permanent resident of Uttarakhand and the Petitioner belongs to 'Jatav' caste, a recognized Schedule Caste in the State of Uttarakhand.

In these circumstances she cannot be deprived of the benefit available to a Schedule Caste of the State on the ground that she indeed is a Scheduled Caste belonging to 'Jatav' Caste.

BOMBAY HIGH COURT

Kuldeep Kumar Sethee Vs. R.S. Sharma, CMD, ONGC and Ors. (Decided on 15.11. 2010) MANU/MH/1508/2010

Penalty of removal from service -Scope of Judicial Review thereof - Article 226 of Constitution of India, 1950 - Whether Court can interfere with the findings of fact arrived at in the departmental enquiry proceedings?

Held, in exercise of judicial review, Court would not interfere with the findings of fact arrived at in the departmental enquiry proceedings excepting in a case of mala fides or perversity. The court cannot embark upon re-appreciating the evidence or weigh the same like an Appellate Authority. In the instant case, Petitioner had crossed all limits of organizational discipline and therefore, decision arrived at by the Disciplinary Authority that he was unfit to be continued in service, cannot be said to be perverse or unwarranted or by way of victimization or mala fides. Petition dismissed.

• CRIMINAL LAWS

BOMBAY HIGH COURT

The Sate of Maharashtra, through Police Station Officer Vs. Rajesh alias Akash singh (Decided on 28.10.2010) MANU/MH/1404/2010

Award of capital punishment by Sessions Court - Challenge against thereto - Conviction for offences punishable under Sections 364, 377, 302 and 201 of Indian Penal Code - Whether offences committed by Accused warrants sentence of capital punishment?

Held, that capital punishment ordered by the Sessions Court cannot be confirmed. Considering the aspect of sentence tend it to capital punishment for this the case has to be rarest of rare. Bare fact of absence of clothes on the corpse and injury to the anus ipso facto will not convert it to be a case of rarest of rare category. The prosecution failed to bring other sets of offences on record which would paint the commission of offence to be heinous, devoid of basic human values, ghastly etc.

Deepak @ Oharilal Joshi and Ors. Vs. The State of Maharashtra (Decided on 28.10.2010) MANU/MH/1405/2010

Plea of alibi -Applicability of Section 11 of Evidence Act to place burden of proof - On whom the burden of proof lies when a plea of alibi is raised?

Held, when a plea of alibi is raised on behalf of the Accused, burden of proof of such alibi is more than that is usually on the Accused for establishing any particular fact on preponderance of probability. In the instant case, no steps were taken by Accused no. 4 through his office to establish his alibi. Further, there was nothing on record to suggest that Accused no. 2 was continuously present all along with D.W. 3. Therefore, reasoning given by learned Additional Sessions Judge in not accepting plea of Accused nos. 2 and 4 cannot be doubted.

• ARBITRATION LAW

DELHI HIGH COURT

Delhi Development Authority Vs. A.S. Sachdeva and Sons (Decided on 16.11.2010) MANU/DE/3084/2010

Arbitrator misconducted in awarding claims- whereof Award challenged under Section 30 of the Arbitration Act - Whether the award is liable to be set aside on the grounds mentioned in the objections?

Held, the learned ADJ rightly concluded that there was nothing on record to suggest that the Arbitrator exceeded its jurisdiction in any manner and rightly made the same rule of the Court. Taking note of the various judgments placed on record by the parties which deal with the jurisdiction of the Arbitrator, the learned ADJ held that in terms of clause 14 of the agreement, the issue of reduction in the item rate was also subject to adjudication by arbitration.

• CONSTITUTION LAWS

Kendriya Vidyalaya Sangathan Vs. Shanti Acharya Sisingi (Decided on 16.11.2010) MANU/DE/3082/2010

Genuineness of the caste certificate- where scope of jurisdiction of the Inquiry Officer was questioned-Whether the Inquiry Officer committed a jurisdictional error in returning a finding upon the social status of the Respondent?

Held, that the instant court had no hesitation in concluding that the view taken by the Tribunal stating that the Inquiry Officer committed an error in returning a finding upon the social status of the Respondent is palpably wrong. Deem Therefore it was deemed appropriate to dispose of the writ petition maintaining the impugned order which quashed the order of removal from service inflicted upon the Respondent, requiring her reinstatement and gave direction that Respondent would not be treated as a member of a Scheduled Tribe in future.

• INTELLECTUAL PROPERTY RIGHTS

Times Internet Ltd. Vs. M/s Belize Domain Whois Service Ltd. and Ors. (Decided on 10.11.2010) MANU/DE/2963/2010

Registrations of Domain name - Whether Plaintiff-company had right over the domain name "indiatimestravel.com"?

It was held with a direction to transfer the domain name "indiatimestravel.com" from Defendant No. 1 to the Plaintiff-company. In the instant case it was difficult to dispute the contention of the Plaintiff that the domain name was adopted and got registered by Defendant No. It was a clear case of passing off and Defendant No. 1 was not entitled to continue using the domain name "indiatimestravel.com". Since, the right to use the words "indiatimes" vested only with the Plaintiff therefore the Defendant No. 2 was directed to transfer the domain name adopted and registered with it by Defendant No. 1 to the Plaintiff. Plaintiff and also claimed damages. No evidence had been led by to prove any damage and no arguments in respect of this relief were advanced on behalf of the Plaintiff.

TRIBUNAL

ITAT AHMEDABAD

Swiss Glass Coat Vs. Assistant Commissioner of Income-tax (Decided on  04.11.2010) MANU/IB/0365/2010

Disallowance of Interest claimed as deduction u/s 80IB of the Act- Whether Learned CIT (A) has further erred in adjudicating the issue of disallowance of Interest earned on FDR claimed as deduction under section 80IB of the Income Tax Act?

Held, for the purpose of claiming deduction under S.80-IB of the Act, the Assessee was not only required to establish that it was business profit of the industrial undertaking, but also to establish that this was a profit 'derived from' the business activity of an industrial undertaking, which means a direct nexus between the profits and industrial undertaking. Mere commercial connection between the income and the industrial undertaking would not be sufficient .Only immediate and effective source of income eligible for grant of relief under section 80IB of the Act must be the industrial undertaking itself and not any other source. The mere fact that such income was a business income would not entitle the Assessee for deduction under s. 80-IB of the Act. Interest earned from the bank, does not have an immediate nexus with the business of the industrial undertaking and therefore, can not be said to be derived from the business of the industrial undertaking. In the present case, In view of catena of cases, order of CIT has to be upheld and claim for deduction on interest Income u/s 80IB Act be dismissed.